Lewis v. Termplan, Inc., Bolton, 46502
| Decision Date | 01 October 1971 |
| Docket Number | No. 1,No. 46502,46502,1 |
| Citation | 184 S.E.2d 473,124 Ga.App. 507 |
| Parties | , 66 A.L.R.3d 646 Viola LEWIS v. TERMPLAN, INC., BOLTON |
| Court | Georgia Court of Appeals |
Syllabus by the Court
Where 24 monthly instalment payments are figured at maximum charge and interest rates to pay out a note purportedly drawn under the provisions of the Industrial Loan Act, which note authorizes acceleration maturity of all 'instalments' upon default in payment, and provides for 8% interest on the liquidated amount from maturity, the election to exercise such a provision as a means of collecting unearned interest plus other interest thereon constitutes usury and renders the instrument void.
On June 24, 1969, the defendant executed a secured note to the plaintiff small loan agency in the face amount of $480 repayable in 24 equal instalments of $20, beginning July 5, 1969. Defendant received $264.89 after deductions of $66.21 interest,.$38.40 investigation fee, $3.50 recording fee and $107 insurance. Defendant made 8 payments, all late, and was credited with $157 after deduction of late charges totaling $8. Suit was filed on October 20, 1970, seeking a principal balance on the note of $328 principal and $26.24 interest (for one year at 8%) under the following provisions of the instrument: 'Failure to pay any instalment * * * when due hereunder shall at the option of the holder and without notice render all instalments due and payable at once' and 'interest from maturity at the rate of 8% per annum.'
Plaintiff secured a default judgment and initiated garnishment proceedings. The defendant's subsequent motion to vacate the judgment and garnishment execution were granted for reasons not germane to this discussion, and defendant then moved for summary judgment based on a usury defense. The denial of this motion forms the subject matter of the appeal.
Larry D. Woods, David G. Crockett, David A. Webster, Atlanta, for appellant.
Richard V. Karlberg, Jr., Atlanta, for appellee.
It is noted that the face amount of the instrument sued on was figured, as to principal, interest, fees and insurance, according to the method approved in McDonald v. G.A.C. Finance Corp., 115 Ga.App. 361(1), 154 S.E.2d 825. The judgment in that case, however, did not, as here, include the added-in interest but only that part of the balance reflecting principal indebtedness.
This plaintiff sought and obtained a judgment which, judged alone by the terms of the instrument, was valid. It claims that all payments were late. The interest sought was $26.24, or 8% of $328, which would seem to indicate plaintiff attempted to rely on the acceleration clause maturing the debt from October 5, 1969, one year prior to filing suit, although it also contends the interest should run from April 5, 1970. Eight delinquency fees of 5% were collected, so although we give the plaintiff the benefit of this doubt and apply the $26.24 interest for the period from March 5, 1970, through February 5, 1970 (the date of judgment being January 13, 1970), the interest is still usurious. Code Ann. § 25-315(d) is clear that a 5% delinquency charge may be made only once as to any instalment and this is all that may be made. But the real difficulty is that the maximum interest for a 24 month note had already been calculated and included and could not, under Code Ann. § 25-315(a) be discounted in advance, for which reason when the plaintiff opted to accelerate and claim unearned interest on the otherwise unmatured instalments of November 5, 1970, through June 5, 1971, this amount was usurious and the instrument authorizing its collection is void under Code Ann. § 25-9903. In fact, it is doubly usurious because the judgment sought and obtained included not only unaccrued interest for the period beyond October 10, 1970, through June 1971, when the loan would have been paid out under its...
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Burley v. Bastrop Loan Co., Inc.
...acceleration clause is to render the note as a whole usurious, the note is unenforceable in the Georgia Courts. Lewis v. Termplan, Inc., 124 Ga.App. 507, 184 S.E.2d 473 (1971)." Id., at 907 (footnote omitted). After reviewing other Georgia decisions as to the enforceability vel non of loan ......
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FULTON COUNTY TAX COM'R v. General Motors
...S.E.2d 40 (1980); see also American Liberty Ins. Co. v. Sanders, 122 Ga.App. 407, 410(3), 177 S.E.2d 176 (1970); Lewis v. Termplan, 124 Ga.App. 507, 508, 184 S.E.2d 473 (1971). Therefore, we never reach the issues raised by the Tax Commissioner's allegations, because he failed to submit any......
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Bell v. Loosier of Albany, Inc., 50840
...shows the verbiage of the statutes and contracts to be totally different. The seminal case dealing with the subject was Lewis v. Termplan, Inc., Bolton, 124 Ga.App. 507, 184 S.W.2d 473. There this court condemned two phrases as making operative the 'null and void' sentence of the loan regul......
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Barrett v. Vernie Jones Ford, Inc.
...acceleration clause is to render the note as a whole usurious, the note is unenforceable in the Georgia courts. Lewis v. Termplan, Inc., 124 Ga.App. 507, 184 S.E.2d 473 (1971).3 The decision in Lewis was amplified by the Court of Appeals sitting en banc in Roberts v. Allied Finance Co., 129......